Following a bench trial, defendant Reginald Kelley was convicted of first degree murder, attempted first degree murder and armed violence. Kelley was sentenced to an extended-term sentence of 80 years' imprisonment for the first degree murder conviction and 20 years' imprisonment for the attempted murder conviction, to be served consecutively. The aggravated battery with a firearm and aggravated battery counts merged with the attempted first degree murder conviction. On March 31, 1999, his convictions and sentences were affirmed on appeal. People v. Kelley, 304 Ill. App. 3d 628, 710 N.E.2d 163 (1999). On December 13, 1999, Kelley filed a pro se petition for post-conviction relief. The petition was dismissed on January 31, 2000. Kelley now presents the following issue on appeal: whether his consecutive sentences should be modified to run concurrently in light of sections 5-5-3.2(b)(4)(i) and 5-8-4(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3.2(b)(4)(i), 5-8-4(a) (West 1994)) being declared unconstitutional.

While defendant frames the issue in his notice of appeal as whether his consecutive sentences should be modified to run concurrently in light of sections 5-5-3.2(b)(4)(i) and 5-8-4(a) of the Code being declared unconstitutional, the argument made in his brief is limited to an additional contention that the trial court's sentence abridged Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Apprendi was decided in June 2000. In defendant's brief, he argues that "[b]ecause the post-conviction hearing judge did not have the opportunity to consider the impact of Apprendi, this Court should modify Kelley's sentences to run concurrently and remand this case to the trial court for resentencing."

BACKGROUND

On August 29, 1994, Kelley was charged with two counts of first degree murder, armed violence, attempted first degree murder, aggravated battery with a firearm, aggravated discharge of a firearm and three counts of aggravated battery.

Ebony Collins testified at Kelley's trial that on the evening of July 25, 1994, while sitting in her car at a stop-light with her three-year-old son, her father, Ronnie Cole, and her brother, Ronnie Jr., she saw Kelley and some of his friends near a grocery store on 79th Street and Yates. While she did not know Kelley's name at that time, she recalled that she had seen him several times before in the area. She noticed that he was "constantly" looking at her car. Kelley and one his friends, Jernel Brown, proceeded to cross the street. While they crossed the street, Collins observed Kelley "fumbling" with his shirt. Kelley reached the northwest corner of a gas station and was still fumbling with his shirt. Collins testified that Kelley was standing on the curb of the gas station and "threw gang signs" at her. Collins just looked at Kelley and began driving through the intersection. Then Collins heard someone say, "Ain't that the motherfucking car right there?" As she continued driving, Collins heard what she believed at the time to be a car backfiring. She later realized that the sounds were gunshots. She heard approximately three shots and her father said that he had been hit and she heard her three-year-old son "let out a loud cry." She looked at her son and discovered that he had been shot in the back of the head. She stopped the car and her father told her to let her brother, Ronnie Jr., drive the vehicle. The three-year-old boy died that evening at Jackson Park Hospital. Collins' father, Ronnie Cole, was shot twice in the right arm and was hospitalized for three days.

More witnesses testified, and after the State rested its case, defendant moved for a directed verdict. That motion was denied. At the end of trial, defendant was found guilty of first degree murder and attempted first degree murder. Prior to sentencing, defendant submitted a motion for a new trial. That motion was denied.

The presentencing report provided that on January 20, 1994, defendant pled guilty to possession of a controlled substance with intent to deliver and was sentenced to two years' felony probation. After hearing testimony in aggravation and mitigation at Kelley's sentencing hearing, the court noted that it considered the fact that defendant had been found guilty of possession of a controlled substance and was sentenced to probation, the age of the murder victim, the injury to the Ronnie Cole, defendant's personal and criminal history, and the court's intent to deter defendant and others from "such senseless shootings, senseless acts that endanger and actually kill people." On February 10, 1997, the trial court imposed an extended-term sentence of 80 years' imprisonment for first degree murder and a consecutive sentence of 20 years' imprisonment for the attempted first degree murder.

On December 13, 1999, defendant filed a pro se petition for post-conviction relief. The petition was dismissed on January 31, 2000, indicating that the issues sought to be raised were barred by res judicata or waived.

ANALYSIS

Defendant's primary issue on appeal is, based on the ruling in Apprendi, whether this court should modify his sentences to run concurrently and remand for resentencing because he received an 80-year extended-term sentence under section 5-5-3.2(b)(4)(i) and a consecutive 20-year sentence under section 5-8-4(a) of the Code. The State initially responds that defendant's argument is waived. In the alternative, the State asserts that Apprendi does not apply to the instant case because the trial court imposed mandatory consecutive sentences pursuant to section 5-8-4(h) of the Code (730 ILCS 5/5-8-4(h) (West 1994)).

Section 5-8-4(h) of the Code provides that if a person charged with a felony commits a separate felony while on pretrial release or in pretrial detention, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered. 730 ILCS 5/5-8-4(h) (West 1994). The State's reliance on this section is misplaced. The trial court did not state that it was sentencing Kelley on the possession of a controlled substance conviction to run consecutively with his first degree murder, attempted first degree murder, and armed violence convictions.

We also note that Kelley's argument is not waived. A party may challenge the constitutionality of a statute at any time. People v. Wright, 1 ...

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